Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than two decades. He writes about school-related cases in the U.S. Supreme Court and in lower courts.

High Court Denies Appeals on Student Speech, Church Services at Schools

The U.S. Supreme Court on Monday declined to take up two closely watched education cases, one involving student free speech and the other about a church's right to use a public school building for weekend worship services.

In Dariano v. Morgan Hill Unified School District (Case No. 14-720), the justices refused without comment to hear an appeal brought by California high school students who were barred from wearing American flag apparel during a Cinco de Mayo celebration at their school.

An administrator had prohibited the apparel, citing hostilities between white students and those of Mexican descent.

The case stems from the Cinco de Mayo celebration of Mexican heritage at Live Oak High School in the Morgan Hill district in 2010. The previous year's event had sparked a minor clash between white students and students of Mexican descent.

At the 2010 event, several white students wore American flag shirts to school, prompting talk among some students that the shirts were intended to provoke Mexican or Mexican-American students. An assistant principal told the white students they had to turn the American flag shirts inside out or go home. Two students and their parents sued, alleging their free speech rights were violated.

In February 2014, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, unanimously upheld school officials, saying their actions were "tailored to avert violence and focused on student safety."

Last September, the full 9th Circuit court, made up of 29 active judges, declined to re-examine the panel's decision, over the sharp dissent of three judges. The dissenters said the school's actions amounted to support for a "heckler's veto"—when a speaker is silenced by the reaction of the audience.

"Rather than acting to protect the students who were peacefully expressing their views, Live Oak decided to suppress the speech of those students because other students might do them harm," the dissenters' said.

In appealing to the Supreme Court, the students argued that the 9th Circuit's decision conflicted with Tinker v. Des Moines Independent Community School District, the landmark 1969 decision that upheld students who wore black armbands to protest the Vietnam War as long as school was not substantially disrupted.

In urging the high court to take up their case, the Morgan Hill students received support from a pair of key figures from the 1969 case— siblings Mary Beth and John Tinker, two of the students who had worn the black armbands and won the 1969 decision that has been a bedrock for student free speech.

"Since Tinker, this court has never squarely returned to the question of student political speech at school," said the brief by the Tinkers, who have remained advocates for student free expression throughout their lives. "The lack of guidance has left lower courts in the dark about how Tinker should apply in elementary and secondary schools today."

But the Morgan Hill district told the court that the 9th Circuit's decision was consistent with Tinker and that the case would make a poor vehicle for resolving issues of free speech in schools.

The Bronx Household of Faith has been battling since 1994 to use school facilities. In the latest decision appealed to the high court, a panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, ruled 2-1 last year that the First Amendment's "free exercise clause does not entitle Bronx Household to a grant from the [New York City district] of a subsidized place to hold religious worship services."

The city school system "has substantial reasons for concern that hosting and subsidizing the conduct of religious worship services would create a substantial risk of liability under the" First Amendment's prohibition against government establishment of religion, the appeals court said.

The appeal on behalf of the congregation by the Alliance Defending Freedom argued that "New York City allows tens of thousands of community groups to meet in its public schools after hours for any expression 'pertaining to the welfare of the community,' yet excludes 'religious worship services.'"

In its brief in opposition, New York City argued that among the reasons the case was not worthy of high court review is that the church has recently completed its own building in the Bronx and has been using it for worship services, and thus it no longer has standing to challenge the school system's regulations for building rental.

The city also pointed out that during a time that the church was using school facilities under a court injunction, church leaders had cited evangelical goals for holding services in a public school.

The church replied that despite having its own building, it still has the need to rent school facilities for larger worship services, such as on Good Friday and Easter (for which it applied to use school facilities this year).

The justices weighed the church's appeal at its private conferences for several weeks before denying it without comment on Monday. Justice Sonia Sotomayor took no part in the court's action.

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